Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

Analysis: A new law to offset Citizens United?

Posted Thu, January 21st, 2010 4:00 pm by Lyle Denniston

Analysis

President Obama ordered his aides on Thursday “to get to work immediately with Congress” to develop “a forceful response” to the Supreme Court’s ruling in the Citizens United v. Federal Election Commission case. In a statement, the President denounced the decision, saying it “has given a green light to a new stampede of special interest money in our politics.” It was obvious, therefore, that he was interested in working with Congress to overturn the decision, or at least to narrow it significantly.

Unless he has in mind an amendment to the Constitution, however, it is most unclear at this point whether the lawmakers could do anything — or much of anything — to cut down on “special interest money” in American politics. This was a constitutional decision, laying down (essentially for the first time), a sweeping free-speech right in politics for “special interest” bodies of all types with the concept of “speech” clearly embracing spending money to influence election outcomes. If individuals have considerable freedom to express themselves politically, corporations, labor unions, and other “special interest” entities now do, too.

While the First Amendment’s guarantees of freedom are far from absolute, any time a legislative or other government body attempts to curtail those freedoms, the effort starts with a decidedly negative outlook. Such restrictions come with the heaviest burden of proof of necessity that any governmental act must put forth in order to win judicial approval. And, on Thursday, the Court simply made that burden a good deal heavier in the realm of curbs on political speech, in the form of spending money on campaigns, or otherwise.

Given the degree to which many Republicans in Congress had wished longingly for a First Amendment decision precisely like the one that emerged in Citizens United, it is by no means a certainty than the GOP leaders would enlist in what the President’s statement suggested should be a “bipartisan” effort. In fact, the Senate GOP leader, Mitch McConnell of Kentucky, has been a consistent foe of federal restrictions on corporate spending in national politics, and was one of the leaders six years ago of the effort to get the Court to strike down an array of federal campaign finance restrictions.

Moreover, given the election result Tuesday in the Massachusetts race for a Senate seat, there is reason to doubt that the White House will be able to carry off a significant effort to get a “forceful response” to Citizens United, especially when the real-world effect of that decision in federal campaigns is likely to be greater spending in favor of GOP candidates, since corporations have deeper pockets than, say, labor unions.

As White House legislative analysts think of potential responses to the ruling, it is conceivable that they will not even try to put new restaints on “special interest” spending, because of the constitutional barrier that now stands to stymie that approach. So long as “special interest” groups spend their political dollars on campaign efforts independent of candidates or party organizations, the Citizens United barrier to restrictions will be in place. There thus are fewer options for a legislative counter-measure.

The White House and Congress perhaps could approach the new money situation indirectly, by trying to put more distance between corporate, union or other “special interest” spending and the intended beneficiaries of that spending: favored candidates. One approach would be to increase the transparency of “special interest” spending by more rigorous disclosure legislation, in hopes of exposing more vividly who is in fact benefiting and, perhaps, by embarrassing the beneficiaries. (This is the one kind of legislative approach that the Supreme Court upheld on Thursday.)

Congress conceivably could attack the perceived problem of money-in-politics by another indirect means, by tightening restrictions on dealings between lobbyists and elected officials, including legislators. Lobbying, too, has First Amendment protection, but it is an activity that can be regulated at least at the level of disclosure. A drastic approach might be to expand the concept of questionable vote-buying, by requiring a more detailed public accounting of how lawmakers vote in relation to lobbyists with whom they deal directly and in relation to the industries who may benefit from legislative favors that flow out of the lobbyists’ efforts. One perhaps frivolous suggestion already making the rounds of political conversation is to require legislators to wear NASCAR-style uniforms, emblazoned with the logos of their corporate “sponsors.”

Tightening of lobbying restrictions, however, has been shown to be exceedingly difficult to get through Congress, precisely because there is no such thing as a “bipartisan” consensus on the need for such new measures.

Another indirect option (mentioned by a reader of the blog) would be to move toward public financing of congressional elections and enhancing such financing arrangements for the presidential candidates. That, it is suggested, may move toward reducing the influence of big-money donors, including major corporations.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]